The influence of social science on the law is context dependent

Both law and social science are the result of social processes. Complex interactions between them are inevitable. These interactions are not well understood. Generalizations about them must be more of an observational nature than soundly based in metaphysics, philosophy or robust empirical findings.

A legal system is a set of social organizations - legislatures, courts, the bar (lawyers and legal scholars), regulatory agencies and police - that are all supposed to work together. For each of them social science plays a different role in the development of the law. Legal systems are unique in many re­spects for each country. The way the components of a legal system are influenced by social science can only be fully understood in the context of a given country at a given time.

The processes through which social science influences law are many. They depend on the kind of law being considered and the part of the legal system which is affected. The processes are both direct and indirect. Direct influences occur when social science can be shown to have some use by, or effect on, actors in the legal system. An example of this is the famous case of Brown v. Board of Education of Topeka (347 U.S. 483, 1954). The Supreme Court changed the law when it decided that racial discrimination in the public schools was illegal. Not only did the judges make new law, but they sup­ported their decision with the social science research of Gunnar Myrdal (1898-1987). Like the Brandeis brief, it is an example of an instance in which social science is a direct source of law. It also confirms Backhaus's theory that social science knowledge or methodology has been developed into legal principles.

Indirect influences occur when the knowledge of social science results in techniques which, in turn, can be shown to have some effect on actors in the legal system. Often direct and indirect influences are at work at the same time. Many examples of the indirect processes through which social science is a source of law can be found in the growth of the kind of technology which results in new techniques. One example is the increasing attention given to laws governing intellectual property rights and reputations. Social science is also an important indirect source of the law when the growth of the knowl­edge it produces causes changes, as for example in the treatment of mental problems.

When knowledge causes change, judges, lawyers and legal scholars cannot rely on precedent for answers. How are property rights to be assigned to ideas embodied in a quasi-public good which has value because of the ideas behind it? An example is a new form of business organization. There are no studies that tell us which process, direct or indirect, is more important in using social science as a source of law.

It is very possible that the role of social science as a source of law is somewhat different in countries with code law systems and countries with common law systems. These two systems are the most important in the world today. The comments here are intended to apply to both systems on the assumption that the similarities are more important than the relatively minor differences for this topic.

As previously mentioned, most Islamic scholars would reject the idea that social science played any substantial role as a source of Shari'a, and most Jewish scholars would also reject the contention that the foundations of Jewish religious law owe much to social science. However, both religions are increasingly utilizing it, although in very different ways, as they adjust to changing conditions. The laws of China, India and Japan are all influenced by social science in very different ways.